EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Hardie Lord Mackay of Drumadoon	[2011] CSIH 21 XA195/09 OPINION OF THE COURT delivered by LORD HARDIE in the cause GORDON BARBOUR RENTON Pursuer and Respondent; against PARINAZ SHAHNAVAZ OR WALTON OR RENTON Defender and Appellant: _______

Act: Party

Alt: Party

18 March 2011

Introduction

[1] In 2008 the respondent commenced divorce proceedings in Edinburgh Sheriff Court seeking divorce from the appellant on the grounds that the marriage had broken down irretrievably by reason of the parties' non-cohabitation for a period of two years or more. He also sought payment of a capital sum of £200,000, an order ordaining the appellant to provide details of her resources in terms of section 20 of the Family Law (Scotland) Act 1985 ("the Act") and an order in terms of section 8(1) of the Act for the transfer to the respondent of the appellant's right, title and interest in the property at 190 Morrison Street Edinburgh. The appellant did not resist the crave for decree of divorce but disputed the financial claims made by the respondent and in turn she sought payment of a capital sum from the respondent of £215,000, transfer of the respondent's right, title and interest in the heritable property at 17/1 Torphichen Street, Edinburgh to the appellant, payment of aliment and interim aliment at the rate of £400 per month and a periodical allowance at the same rate from the date of decree of divorce, as well as an order in terms of section 20 of the Act ordaining the respondent to provide details of his resources.

[2] Initially both parties were represented by solicitors but in the course of the proceedings before the sheriff, each party ceased to be represented by a solicitor and conducted the litigation in person. On 15 December 2008 the respondent departed from his fourth crave seeking an order in terms of section 8(1) of the Act. On 18 December 2009 the sheriff granted decree of divorce, refused the respondent's claim for a capital sum and refused as unnecessary the respondent's third crave seeking an order in terms of section 20 of the Act; the sheriff further awarded the appellant a capital sum of £112,500 being half of the assessed value of the property at 17/1 Torphichen Street, Edinburgh and ordered payment of that capital sum by the respondent to the defender with interest thereon at the rate of 8% per annum from the date of decree until payment; further dismissed the second plea-in-law for the appellant seeking transfer to her of the respondent's title to the former matrimonial home; refused the appellant's claims for aliment and periodical allowance and refused as unnecessary the order sought in terms of section 20 of the Act. The appellant has now appealed against the sheriff's interlocutor on a number of grounds which we address below.

Respondent's cross appeal

[3] Before considering the appeal, we should record that the respondent took advantage of the appeal by lodging grounds of appeal to challenge the decision of the sheriff concerning the division of the matrimonial property. In particular, he challenged the sheriff's conclusion that a partnership existed between the parties in respect of the firm CEC Systems and that the business of that firm was a matrimonial asset, as well as his decision to exclude from the matrimonial property certain assets of the appellant. The respondent also sought to challenge the award of the judicial rate of interest on the capital sum awarded to the appellant as being "incompatible with the official bank interest rate prevailing at present, and for the foreseeable medium term". Finally, the respondent sought the remedy of having the appellant removed from the former matrimonial home, the title to which is in the respondent's name.

[4] On 7 May 2010 the court fixed a timetable for the appeal proceedings, which included a requirement that each party should lodge written submissions on or before 30 December 2010. The appellant complied with this requirement but the respondent did not; rather he tendered his submissions to court officials late in the afternoon of the day prior to the appeal being heard. He did not intimate that document to the appellant. At the hearing of the appeal, it was apparent that the appellant was at a disadvantage by reason of the respondent's failure to comply with the timetable fixed by the court. Having regard to the time that had elapsed since the commencement of the proceedings in the sheriff court, we did not consider that it was appropriate to adjourn the appeal hearing to a later date. In any event, it was clear that the points raised by the respondent in his grounds of appeal had no prospect of success. In his pleadings the respondent avers that in or about May 1987 the parties commenced trading as CEC Systems. Although he avers that he was solely responsible for the running and development of the business, he also avers that between 1987 and 1991 the appellant sat in the shop from about 10am until the respondent arrived at lunchtime and thereafter she was in the shop for "a couple of hours in the afternoon with the exception of a Wednesday afternoon which she had off." He also avers that he obtained a loan of £14,000 as a deposit for the purchase of 19 Montague Street, "which the partnership (emphasis added) of CEC Systems repaid." In his judgment the sheriff made the following findings in fact in relation to the firm:

"15. That the firm CEC Systems remains in existence and the pursuer continues to trade under that name. The partners of the firm are the pursuer and the defender and since I was never shown any partnership agreement or advised to the contrary, I am obliged to assume from the absence of contrary evidence that they are equal partners in it. In reality, however, I am clear that the pursuer is the driving force and the only partner who has knowledge in the electronic business. The defender's contribution to the operation of CEC Systems has been that of an unskilled assistant although her presence was necessary on occasions to ensure that the shop premises stayed open.

16. That during the years when this business has operated to the extent of generating income, that income was shared equally to the extent to (sic) both benefited from it and it was used to maintain the business and the property from which the business operated.

17. That during the existence of CEC Systems there have been other companies, particularly one called Marketing Sense, which were operated in conjunction with CEC Systems but none of these remain and no relevant or significant income was generated from any of them. The financial inter-relationships are entirely unclear.

18. That CEC Systems has been failing for a number of years and as at the date hereof is generating no meaningful income. It has made a loss in each of the five years prior to the date of separation.

19. Accordingly while CEC Systems is undoubtedly a matrimonial asset and falls to be regarded as matrimonial property because of the involvement of both parties in the business over the years, it has no financial value as a business which can be considered for inclusion in the assessment of matrimonial property.

20. That the partners of CEC Systems, namely the pursuer and the defender, as trustees for the firm, are the owners of shop premises at 190 Morrison Street, Edinburgh and have been so since the premises were purchased in 1991."

[5] Moreover, in article 4 of condescendence the respondent avers inter alia:

"When the parties separated ... the matrimonial assets consisted of the following:

13. The shop premises at 190 Morrison Street, Edinburgh in the names of the parties as Trustees for the Firm of CEC Systems. The shop premises form partnership property and form a fixed asset of the partnership."

On the basis of the respondent's averments, leaving aside the sheriff's findings of fact, it is not now open to the respondent to maintain, as he does in the note tendered on the eve of the appeal hearing, that he purchased the shop at 190 Morrison Street, Edinburgh and ran the business from there and that there was "in effect no partnership of any kind ... in business ...". Even without the positive averments by the respondent in his pleadings, as an appeal court, we are constrained by the sheriff's findings in fact unless these are subject to challenge, in which event it would be essential for the court to be aware of all the relevant evidence before the sheriff which enabled him to make the disputed findings in fact. To that end, it would be necessary to have transcripts of the relevant passages of evidence. At the procedural hearing on 7 May 2010, both parties were advised that if they wished transcripts of the evidence, the obligation to order and pay for the transcripts rested with the party wishing them. As regards the respondent's complaint about the rate of interest awarded by the sheriff, it was the judicial rate which the court normally awards in such cases. The appropriateness of the level of the judicial rate is not a matter for this court, far less in the context of an appeal. Finally in determining that the cross appeal should be dismissed by reason of the respondent's conduct and the lack of merit in the issues raised by him, we noted that it is possible for him to obtain an incidental order regulating the occupation of the former matrimonial home, independently of the proceedings before this court. Such an incidental order may be made on or after the granting of the decree of divorce (section 14(1), (2)(d)(i) and (3) of the Act). The sheriff who conducted the proof is competent to consider any such application. In all the circumstances we dismissed the cross appeal.

Appellant's grounds of appeal
[6] The appellant advanced a number of grounds of appeal and it may be convenient to quote each ground of appeal; summarise the appellant's argument in support of it in so far as it is necessary to do so, as the nature of her complaint is often fully set out in the ground of appeal; and thereafter provide our decision in respect of that ground of appeal before proceeding to the next one. The first ground of appeal was in the following terms:

"The Sheriff has erred in law in the division of the net value of the matrimonial property at the relevant date ... He has relied on a valuation in the record (sic) of £225,000, which is different from the valuation conducted by Chartered Surveyors SHEPHERD; carried out in January 2009; which puts the value is put (sic) at £275,000. The sheriff has failed to consult the copy of the valuation in the production and has divided the figure put in the record fraudulently by the pursuer's solicitor. Defender/appellant requests the finding be varied and the true valuation be considered, in order to meet the reasonable housing needs of the defender and the division and sale of the matrimonial home after essential repairs carried out. Also the defender wishes to be involved in marketing and the sale of the said property."

As was clear from the ground of appeal and the submissions advanced by the appellant, the criticism of the sheriff is that he ought to have taken £275,000 as the valuation of the former matrimonial home at 17/1 Torphichen Street, Edinburgh, as opposed to £225,000. The higher figure was contained in a valuation dated 5 November 2008 by J & E Shepherd, chartered surveyors (appendix 82), whereas the lower figure was based upon an averment in article of condescendence 4 to the effect that the relevant date valuation was £225,000. For the sake of completeness we observe that the date of the production upon which the appellant relied is as stated above and not January 2009 as the appellant alleges in her ground of appeal. Having said that, this error on the part of the appellant does not affect our determination of this issue. The appellant further submitted that the present value of the property is in excess of £300,000 as evidenced by the sale of a neighbouring flat for a price in excess of £330,000. In these circumstances the appellant seeks correction of the figure taken by the sheriff as the value of this matrimonial asset with a consequential adjustment upwards of the capital sum payable to her. She also seeks an order for the sale of the property and the division of the net sale proceeds of such sale equally between her and the respondent.

[7] Section 9 of the Act requires the court to apply certain principles in deciding what order for financial provision, if any, to make. One of the principles is that the net value of the matrimonial property should be shared fairly between the parties to the marriage (section 9(1)(a)) and in applying that principle, the net value of the matrimonial property shall be taken to be shared fairly between the parties when it is shared equally or in such other proportions as are justified by special circumstances (section 10(1)). In the present case, there is no suggestion of special circumstances. Accordingly the sheriff ought to have shared the value of the former matrimonial home equally between the parties, which he purported to do. The issue is whether he has taken the correct value for division between the parties. Section 10(2) of the Act provides that the net value of the property shall be the value of the property at the relevant date after deduction of any debts. In the present case there are no debts to be deducted and the sheriff was thus concerned with the value of the former matrimonial home at the relevant date. Section 10(3) of the Act defines the relevant date as the earlier of two dates, namely, the date on which the parties ceased to cohabit and the date of service of the summons in the action for divorce. In the present case, the earlier date is the date of cessation of cohabitation. The sheriff records in his note at page 9 that "one of the few matters not disputed was the fact that this marriage had broken down irretrievably, and that for the purposes of the court the date of separation could be accepted as being 23 June 2005" although he was satisfied that the parties had been living separate lives for some years prior to that date. Thus for the purpose of the valuation of matrimonial property, the relevant date in this case was 23 June 2005. That is an important factor to bear in mind when one considers the valuation dated 5 November 2008 to which the appellant referred in her grounds of appeal and relied upon in her submissions before us, although, as previously noted, the appellant does not wish to be constrained by that valuation; rather she wishes one half share of the current net value by seeking an order for sale of the house and the equal division between the parties of the proceeds of sale, after deduction of the costs of improvements and the costs of sale. This approach ignores the statutory provisions in section 10 of the Act to which we have already referred. The valuation by J & E Shepherd was undertaken on 4 November 2008, being the date on which the respondent's solicitors instructed the valuation, or on 5 November 2008, being the date of the letter. At page 3 of the letter in the section entitled "VALUATION" the valuer expressed the following opinion:

"We are therefore of the opinion that the current market value (emphasis added) with the benefit of vacant possession may be fairly stated in the region of £275,000."

Thereafter the valuation does not seek to address the question of the valuation of the property as at 23 June 2005, being the relevant date. On any view, in the absence of more accurate information, the sheriff could not conclude that the valuation of the former matrimonial home at the relevant date was £275,000, as advocated by the appellant. Moreover, at page 17 of his note, the sheriff states:

"I will deal with other financial matters later but I simply note at this point that there is a relevant date valuation (June 2005) of £225,000 ...".

In the absence of the transcripts of the relevant passages of evidence, we are not in a position to challenge that observation of the sheriff, even although the thrust of the appellant's submission was that the only valuation was the one referred to earlier. However, even if the valuation dated 5 November 2008 was the only valuation available to the sheriff, he could not simply adopt that valuation for the purposes of determining the value of the former matrimonial home at the relevant date because in the intervening 3 years there would undoubtedly have been fluctuations in the property market. The sheriff would need some evidence about such fluctuations to enable him to adjust the 2008 valuation, upwards or downwards, to ascertain the valuation at the relevant date.

[8] If the sheriff only had the valuation dated 5 November 2008 and there was no other evidence available to him to enable him to adjust that valuation to reflect the valuation at the relevant date, we consider that he would have been faced with two options. The first and more extreme option would be to conclude that neither party had established the valuation of this matrimonial asset and he was thus unable to determine that fact because neither of them had led sufficient evidence about it, a difficulty which he seems to have experienced generally in the proof. In that regard at page 10 of his note, the sheriff observes:

"... I will attempt to deal with each of these issues [the various areas of dispute identified earlier in his note] but I have to preface this by indicating that the evidence at proof was on both sides poorly led and focussed, and the parties tended to concentrate on attacking each other in respect of personal matters rather than concentrating on what was truly relevant for either the proof of facts or the settlement of the case. I could easily come to a view that both pursuer and defender had largely failed to establish their respective claims to any extent, on the simple basis that neither had led sufficient evidence to discharge the onus of proof. However, I have come to the view that that would be an unreasonably pedantic and legalistic approach and I have decided to allow both of them great latitude and relaxation of procedure and evidential rules in order to reach a judgment which hopefully will resolve a long and bitter dispute."

Had the sheriff adopted this more extreme approach and concluded that the value of the former matrimonial home at the relevant date had not been established, he could have excluded that unvalued asset from the matrimonial property to be divided equally between the parties by determining that, on the evidence led, he was unable to attribute any proved value to this asset. Such a result would have resulted in no award of a capital sum being made to the appellant in this case because the ultimate conclusion of the sheriff was that the only asset to be divided between the parties was the former matrimonial home and the title to that was in the sole name of the respondent. Such a result would clearly have been unfair to the appellant. She had lived in that house for many years and it was matrimonial property, whatever its value. The second, and more equitable, option would have been to conclude that the former matrimonial home clearly had some value and to take, as the value at the relevant date, the figure put on it in his pleadings by the respondent even although that figure was not accepted by the appellant. That was the only competing figure available to the sheriff. Although the appellant disputed the figure in her pleadings, she did not suggest any higher figure. Even if she had, she did not lead any evidence of the proper valuation, assuming that the sheriff is incorrect to say that there was an agreed valuation at £225,000. If there was no evidence that the value at the relevant date was £225,000 or any other figure, the sheriff could be seen to have relaxed evidential rules by accepting the respondent's figure even although it was disputed by the appellant. The result of such an exercise would have been an award of a capital sum to the appellant of £112,500. Thus even if the sheriff erred in noting that there was a relevant date valuation of £225,000, the best result that the appellant could have achieved, in the absence of clear evidence of a relevant date valuation, would have been an award of a capital sum in the amount actually awarded to her.

[9] As for the ancillary issues raised by the appellant relating to the repair and improvement of the property, the involvement of the appellant in the marketing and sale of the property and the division of the proceeds of sale equally between the parties, there are a number of reasons why the appellant's wishes in that regard cannot be fulfilled. First, as already noted the title to the property is in the sole name of the respondent. The appellant cannot force the sale of the property other than indirectly through enforcement of the decree in her favour. Second, the appellant is not in law entitled to one half share of the current net market value of the property. Her entitlement has been determined in terms of sections 9 and 10 of the Act based upon the sheriff's assessment of value at the relevant date. Fluctuations in value since that date cannot operate to the advantage or disadvantage of the appellant. For the foregoing reasons we reject this ground of appeal.

[10] The second ground of appeal was in the following terms:

"The sheriff has erred in law in terms of the Partnership, he has implied that a written co-partnery agreement validates the partnership. The absence of a written agreement has no bearing on the validity of the contract ... The partnership has never been in dispute, the pursuer/respondent has never denied the validity of the partnership. However the sheriff has failed to take into account the pursuer's conduct ... the pursuer/respondent has excluded the defender/appellant from the firm, the defender has been denied access to the accounts, the pursuer has treated the firm as his own, transferred funds into his personal bank accounts without due regard to defender/appellant's rights. However, he has included funds in excess of £53,000 in his personal accounts as matrimonial assets and list his bank accounts as such. The sheriff has misdirected himself in excluding the said accounts from his calculation, the funds should be divided equally between the parties."

In her written and oral submissions the appellant acknowledged that the sheriff accepted that a partnership existed between the parties but her criticism of the sheriff was directed at his failure to deal with the assets of the partnership. In particular, she raised concerns about the respondent's intromission with funds at credit of a company (Marketing Sense) when it was dissolved and also in relation to a sum of £53,000 in the respondent's bank accounts. That sum, the appellant contended, truly belonged to the partnership and ought to have been included as a matrimonial asset. The respondent's donation of £18,735 to his brother from the partnership assets was another issue that ought to have been taken into account.

[11] We note that the appellant accepts that the sheriff concluded that a partnership existed between the parties. The sheriff's reference to his not having seen a partnership agreement appears to have been misunderstood by the appellant. In finding in fact 15 the sheriff observed inter alia:

"The partners of the firm are the pursuer and the defender and since I was never shown any partnership agreement or advised to the contrary, I am obliged to assume from the absence of contrary evidence that they are equal partners in it."

Thus the sheriff was acknowledging not only that a partnership existed but that the appellant and respondent were deemed to be equal partners entitled to equal shares in the absence of any evidence to the contrary. The sheriff was correct in law to reach that conclusion in the absence of a partnership deed or any other evidence, establishing that the partnership assets and liabilities should be divided between the parties other than in equal shares. The other criticisms of the sheriff's findings allegedly due to errors on his part cannot be resolved by this court without recourse to transcripts of all the relevant passages of the evidence heard by the sheriff. We have already quoted the sheriff's findings in fact in relation to the partnership. Finding in fact 17 recognises that other companies have been in existence, including Marketing Sense, which were operated in conjunction with CEC Systems. Finding in fact 18 notes that the firm has made a loss in each of the 5 years prior to the separation. Most significantly the sheriff found as a fact that CEC Systems was undoubtedly a matrimonial asset and fell to be regarded as matrimonial property but it had no financial value. That finding was undoubtedly based on his assessment of the evidence. That finding in fact is fatal to any award of a capital payment in favour of the appellant based upon a share of the value of the business. In order to be successful, the appellant would require to satisfy us that this finding in fact was unsupported by the evidence. We are unable to entertain any such submission in the absence of a transcript of the relevant passages of the evidence, a fact which was known to the appellant since at least the procedural hearing on 7 May 2010. Despite that, the appellant did not produce transcripts of the evidence and elected to advance this and other arguments based upon her view of the evidence when it must have been obvious to her that such arguments were bound to fail, if the court did not have transcripts of the relevant evidence considered by the sheriff. Accordingly the appellant cannot succeed on this ground of appeal. We would observe that, even if the transcripts had been available, the appellant would have had to satisfy the court that the sheriff was unable to interpret the evidence as he did and to reach the factual conclusions that he did. The burden of satisfying an appeal court of such matters is high and must take into account the obvious advantage that a judge of first instance has in assessing the witnesses who appear before him - an advantage which is denied to an appeal court. The transcripts of the evidence would require to satisfy this court that the sheriff could not have reached the factual conclusions that he did, on any view of that evidence. Having concluded that the appellant cannot succeed on this ground of appeal it does not mean that the appellant has no remedy, if the respondent has misappropriated partnership funds as she alleges. If the respondent gave partnership funds to his brother and if he holds £53,000 of partnership funds in his personal accounts which truly belong to the firm, these are issues which might be raised in, and are more appropriate to, other proceedings relating to the respondent's intromissions with partnership property. In the circumstances, we reject this ground of appeal.

[12] The third ground of appeal was in the following terms inter alia:

"The sheriff has erred in law and applied the law incorrectly ... refusing the defender's third plea in law of a periodical allowance of £400 per month. Family Law (Scotland) Act 1985 takes into account the financial circumstances of the parties and the party who is likely to suffer financial hardship to be awarded. Since the date of separation in 2005, the partnership has paid the Council Tax, and utility bills, now that that help is withdrawn the defender will find it hard to pay them. Also the Family Law (Scotland) Act 1985, takes into account age and ability to work of the parties and whether a party is likely to suffer financial hardship as a result of dependence on the support of the other, in this instance the partnership. He further misunderstood what the defender stated regarding the amount of periodical allowance required. The pursuer gave an undertaking signed in the presence of a Justice of the Peace in 1984 (appendix 3) to pay aliment in the vent (sic) of a breakdown of marriage. Therefore, she is entitled to a periodic allowance as craved in the pleadings until she is able to conduct an independent life."

The terms of the ground of appeal are self explanatory. The reference to the undertaking signed by the respondent in 1984 is a reference to a holograph letter dated 30 August 1984 (appendix 3) which was in the following terms:

"To whom it may concern

I, Gordon B Renton hereby undertake to adhere to the Islamic law and in the event of separation or divorce from my wife P Shahnavaz pay maintenance to her."

It was signed by the respondent and countersigned by a Justice of the Peace for the county of the City of Edinburgh. The appellant submitted that this document constituted a unilateral obligation by the respondent to pay her aliment. Although the duration of the period was not specified, the court could determine what period would be appropriate.

[13] We note that the unilateral obligation not only fails to specify the period during which aliment must be paid following separation or divorce, it is also silent concerning the amount to be paid. That is understandable in the context of a contingent liability to pay at some uncertain future date. While we acknowledge that, provided certain requirements in law are met, a unilateral obligation can be enforced, the terms of the obligation in the present case are such that, in the absence of any evidence about Islamic law, the court is entitled to determine questions of the amount of aliment payable and the duration of payment in accordance with the practice of Scots law. That involves considering the respective means of the parties at the date of the proof and is an exercise of discretion by the judge of first instance (in this case the sheriff). The sheriff has considered the respective incomes of the parties and has taken into account that they have for years effectively led separate financial lives on the basis of day to day living costs as well as savings. On an assessment of these factors, including a conclusion that the finances were essentially in balance although the appellant may have a slightly higher income, the sheriff exercised his discretion in concluding that no award of periodical allowance should be made to the appellant. We are unable to conclude that in exercising his discretion the sheriff erred in law. The fact that the appellant's share of Council Tax and certain utility bills were previously paid by the partnership and now require to be paid by the appellant does not alter our view. We are unable to determine whether there was evidence before the sheriff to that effect and, even if there was, the nature and extent of that evidence cannot be ascertained by us without the relevant transcripts. Only when the nature and extent of any such evidence is known, is it possible to place it in context and determine its significance, if any. Accordingly we cannot interfere with the sheriff's conclusion that no award of periodical allowance should be made to the appellant. In these circumstances we reject this ground of appeal.

[14] The fourth ground of appeal was in the following terms:

"The sheriff has erred in law by holding that the onus of proof rested equally on the parties. The onus of proof was on the pursuer/respondent and remained on him, he failed to discharge it. The one issue that the defender/appellant aimed to prove was a matter of law that of partnership and the pursuer's breach of trust, breach of fiduciary duty, misappropriation of fund (sic) and unjust enrichment. Evidence was led to prove the contention. The pursuer testified that he had excluded the defender from taking part in the partnership, that he further did not consult her on matters relating to the partnership. He testified that he had withdrawn funds to give to his brother to keep for him in the belief that he was entitled to remuneration contrary to the law (Partnership Act 1890, s. 24 ss 5 & 6). He further testified to intromissions with funds of the defunct firm of Marketing Sense (Civil Evidence (Scotland) Act 1988, s 1). The sheriff misdirected himself in holding that direct and clear evidence was not sufficient to satisfy the court. The pursuer corroborated the averments made by the defender in her pleadings regarding the partnership, thus his evidence should have been accepted. Whereas, he held pursuer's testimony in terms of his earning only a few hundred pounds a year although no supporting evidence was presented; indeed there were bank statements contradicting his testimony. The sheriff failed to take a consistent and balanced view of the evidence and he further accepted hearsay evidence as proof without supporting evidence. Thus his conclusions were plainly wrong."

The appellant supplemented this ground of appeal in her oral submissions. She submitted that the conduct of the proof was unsatisfactory. There had been interference by the sheriff. He interrupted her cross-examination of witnesses and said that she was going over old ground. It was not appropriate for him to stop her cross-examination. He ignored the testimony of the respondent which corroborated a lot of the appellant's evidence. He failed to mention it in his judgment. He erred when he said that both parties failed to establish their averments. The defender only wished to establish facts concerning the partnership. The sheriff refused the appellant permission to re-examine the respondent after he had altered his position. There was no need for corroboration. In any event the appellant had made averments in her pleadings and there was no need to repeat it in evidence. The appellant referred to financial transactions relating to Marketing Sense and CEC.

[15] We have already referred to the appellant's concerns relating to the respondent's conduct in respect of partnership property. It is unnecessary to repeat our observations in that regard. The issues relating to the sheriff's conduct and to the evidence are again matters which could only be resolved by us, if the transcripts of evidence had been made available to the court by the appellant. We are unable to determine these issues in the absence of either such transcripts or an acceptance before this court by the respondent that the appellant's criticisms of the sheriff were well founded. In the absence of both, the appellant has failed to establish this ground of appeal. In the circumstances we reject this ground of appeal.

[16] The fifth ground of appeal was in the following terms:

"The sheriff has erred in law and fact by excluding certain assets listed in the record as matrimonial property in terms of Family Law (Scotland) Act 1985. The pursuer owns three vintage motor cycles and he holds shares in several companies. He failed to give valuation of these assets and the sheriff left them out of the calculation, the defender wishes to bring these items into the calculation and divided between the parties fairly and equally. Furthermore, he has erred in law and fact by failing to distinguish the status of the parties. The defender's laws and religion entitled her to manage her financial affairs without interference of the pursuer. Whereas the pursuer as the agent of the partnership and identified as the driving force in the firm, albeit that he spent as little time and effort in promoting the firm and divided his attention by engaging in activities irrelevant to the business of the firm; stood in a fiduciary position towards the defender and had fiduciary duties, he breached the said duties by concealing funds from her and giving funds to his brother to keep for him. He removed the defender's name as a signatory from the firm's accounts. The habitual concealment of funds by the pursuer had wider dimensions and implications which did not apply to the defender in keeping her own funds separate from the matrimonial property."

The question of the existence and/or valuations of assets in the possession of the respondent is a matter that ought to have been addressed in the evidence. Without reference to the relevant passages from the transcripts of the evidence, we are unable to determine whether there is any substance in this complaint by the appellant. Our earlier observations about the appellant's obligation to provide transcripts if she wished to pursue certain lines before this court are equally apt to this ground of appeal. In addition, it will be apparent that the other issue relating to the partnership is to a certain extent a duplication of issues canvassed in respect of earlier grounds of appeal. For reasons already explained, we are unable to address the appellant's concerns in that respect in the absence of access to the transcripts of the evidence. In any event, the appellant may have available to her a more appropriate process in which to advance such matters, if she is alleging breach of fiduciary duties towards her by the respondent in his capacity as her business partner. We reject this ground of appeal.

[17] The sixth ground of appeal was in the following terms:

"The errors in fact and inaccuracies are so many that it is hard of (sic) enumerate them but they are fundamental to the case and thus have impacted on the sheriff's findings in law. The sheriff has effectively altered the facts to suit his findings and many of the trivial comments are quite irrelevant and unconnected to the case."

It will be immediately apparent that the basis of this ground of appeal is founded upon alleged errors of fact and inaccuracies upon which we cannot adjudicate without reference to the transcript of evidence. We have already made clear our position in that regard and accordingly reject this ground of appeal.

[18] The seventh ground of appeal was in the following terms:

"The sheriff misdirected himself in failing to comment on the truthfulness and reliability of the witness. The pursuer changed his entire averments in the pleadings. He had stated that he had given the sum of £24,000 as her share of the profits, however in his testimony he altered that and stated that it was the payment for the property at 127 Morrison Street, and in lieu of rent of the said premises for the period the firm was trading from there. When he was pressed as to how the defender purchased goods, furniture, services and holiday money, he conceded that the sum was withdrawn by the defender in order to pay the same. Further it is on record that he had put £24,000 of his inheritance and savings into the firm in order to keep it afloat. However, he admitted that £15,000 of that sum came out of the funds kept in the defunct firm of Marketing Sense. This did not alert the sheriff to the unreliability of the witness, neither did the pursuer's brother Mr David Renton's lies which was (sic) exposed by the pursuer's other brother Mr Eric Renton. However, even the witnesses were misidentified and the evidence of the two brothers mixed up."

Issues of credibility and reliability are essentially matters for the judge of first instance, who has the advantage of seeing and hearing the witnesses in person and forming an impression about their credibility and reliability. An appeal court could not interfere with that assessment except in extreme cases and to do so would require access to the transcript of the evidence before the sheriff. We do not have the transcript available to us and are therefore unable to undertake the exercise that would be necessary before the appellant's appeal on this ground could succeed. Similar difficulties for the appellant apply to the allegation that the sheriff confused two witnesses. Accordingly we are unable to sustain this ground of appeal.

[19] The eighth ground of appeal was in the following terms:

"The sheriff misdirected himself and misused his discretion prejudicial to the defender/appellant. He refused to allow the defender to bring her evidence to a conclusion and affected the chances of proving her claim of fraud perpetrated by the pursuer/respondent. He refused to grant leave to the defender to re-examine three witnesses. Thus, he deprived her in a material sense of satisfying the court of the proof of her averments. He further refused to adjourn the proof in order that two witnesses be present to be examined, the solicitor of the pursuer, had claimed illness and had not appeared, the defender wished to question her regarding an offer made on behalf of the pursuer, to buy land in the middle of a divorce proceeding. The offer was unsuccessful, the sheriff erred in holding that it was an ongoing transaction. The pursuer intended to dispose of funds concealed from the court with the knowledge of his solicitor, in order to defeat her financial claims. It was not within the remit of the sheriff to protect the solicitor from being questioned as an "ordeal" as he termed it, when a question of wrong doing had been raised. That goes to the heart of the insufficiency of evidence which the misapplication of his discretion was largely responsible for."

At page 12 of his note the sheriff explains that at the end of the evidence the appellant made a motion to recall a number of witnesses and separately made a motion to adjourn the proof for other witnesses to be brought to court, including the arrest of a witness to enable the witness to be brought to court. The sheriff sought to ascertain the purpose of recalling the witnesses named by the appellant and was advised that she wished to ask further questions of them in areas which the sheriff describes as areas which the appellant had already dealt with. In the case of the respondent's brother, David Renton, the appellant wished to raise an additional matter. The sheriff had already identified and explored all of the areas of evidence which parties sought to raise. He concluded that nothing would be gained by recalling these witnesses and that the matters which the appellant wished to raise were irrelevant to the decision which he had to make on the real issues in the case. The missing witness, for whom the appellant wished letters of second diligence to enable her to be brought to court, was a former friend of the appellant who had written to the court, to the effect that her evidence would not favour the appellant and was more likely to favour the respondent. The sheriff sought to ascertain from the appellant what the witness might speak about. The appellant's response satisfied the sheriff that this witness could add nothing to the evidence of the parties and the respondent's brother. It appeared from the response of the appellant that the evidence of the witness would deal with matters occurring 15 years ago and related to personal relationships rather than to evidence of importance to establish financial arrangements which were the only proper issues in the case for his determination. The sheriff also refused a motion to adjourn the case to enable the evidence of the respondent's former solicitor to be heard. The respondent had not waived confidentiality and it appeared that the appellant wished to ask the solicitor about a transaction instructed by the respondent in the course of the divorce proceedings. On the basis of the explanation tendered by the sheriff, we are satisfied that the exercise of his discretion in refusing the recall of the witnesses and in refusing the adjournment of the proof was reasonable. The court is entitled, if not obliged, to exercise control over litigation before it. A judge is entitled to prevent unnecessary repetition and to exclude irrelevant evidence. Parties to a litigation, whether represented or not, are not entitled to assume that they can lead any evidence, especially if it has no bearing on the issues for the determination of the court. If it were otherwise, the court would be unable to exercise any control over the litigation before it and some cases would never end. The need for judicial control over litigation is not only for the benefit of the parties in that litigation, causing them to focus on the real issues for determination; it is also designed to ensure that limited court resources are utilised to the maximum effect, thereby affording court time to other litigants whose cases are awaiting judicial determination.

[20] If the appellant does not accept as accurate the sheriff's account in his note at pages 12 to 14 of what transpired at the conclusion of the evidence, this is another matter which could not be resolved without access to the transcript of that part of the proceedings in the sheriff court. On the other hand if the appellant does accept the sheriff's account, as we have already indicated, we are satisfied that the exercise of his discretion in refusing the motions to recall witnesses and to adjourn the proof was reasonable and cannot form the basis of a successful appeal. We shall accordingly reject this ground of appeal.

[21] The ninth ground of appeal was in the following terms:

"The defender/appellant wishes to bring the interlocutors in the case under Review, more specifically the interlocutor of sheriff Jarvie of 6 February 2009, which did not mention the refusal by the sheriff of the defender's amendment altering crave 6 in respect of the expenses of the action and thus it stands. The interlocutor of sheriff McIver (sic) of 7 July 2009 in which he refused the defender's motion at the bar to rewrite the record and correct the inaccuracies."

The issues complained of in this ground of appeal are matters within the discretion of the sheriff who dealt with each matter. An appeal court will not readily interfere with the exercise of such a discretion. Cogent reasons must be advanced to satisfy the appeal court that no sheriff acting reasonably would have exercised his or her discretion in that way. No argument to that effect was advanced before us. We are unable to conclude that there has been any error in law and shall accordingly refuse this ground of appeal.

[22] The tenth ground of appeal was in the following terms:

"The sheriff erred and misdirected himself in holding that mediation would not have worked. The function of the sheriff is to expedite and dispose of the case if possible. The defender offered mediation in August 2009 less than two months after the initial writ and thereafter twice but it was refused by the pursuer; it would have avoided the distress and acrimony."

This ground of appeal related to the sheriff's observation that mediation would not have worked in this case. The appellant alleged that she had offered to negotiate through an intermediary on three separate occasions but the offer was rejected on each occasion. The appellant also criticised the sheriff for his judgement of her character and her personality. She resented the sheriff casting aspersions on her integrity and honour. While we appreciate that the appellant is concerned about these matters, they were not fundamental to the determination of the issues before the sheriff and even if we had concluded that there was any merit in these criticisms of the sheriff, such a conclusion would not have resulted in the success of this appeal.

[23] We would conclude by observing that the issue between the parties, which the sheriff was invited to determine, was what financial provision, if any, should be made and to whom, having regard to the statutory provisions and other law in relation to such questions. A consideration of the sheriff's judgment and the productions lodged in the case disclose that he had to carry out that exercise in the absence of anything like sufficient objective accounting evidence or other relevant financial vouching, as opposed to the assertions of the parties themselves. In that situation we consider that his view, that he may have been justified in holding that neither party had proved their case to the relevant standard thus leaving them in a continuing deadlock, was not without justification.

[24] In all the circumstances, we are satisfied that for the reasons given above we are unable to sustain any of the appellant's grounds of appeal. Accordingly we shall refuse the appeal.